Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

As I wrote here, when an injured worker agrees to a "washout" of his rights to past and future benefits for an on-the-job accident pursuant to§440.20(11), Fla. Stat., employers and carriers in Florida also routinely require the execution of a "general release" in which the injured worker waives his right to any other employment-related claims as well.  Are such "general releases" really effective to waive all such claims?  In Taylor v Progress Energy Inc., the Fourth Circuit Court of Appeals held that a release in which the employee purported to waive his FMLA rights as part of a severance agreement was ineffective because it was obtained without either court approval or the approval of the Department of Labor.

 

Progress Energy has now filed this petition for writ of certiorari in the Supreme Court of the United States seeking review of the Fourth Circuit's decision.  The petition alleges that the Fourth Circuit's decision is in conflict with the Fifth Circuit Court of Appeals' decision in Faris v. Williams WPC-I, Inc.  For more on the petition and this issue, see this post at SCOTUSblog.

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When settling a claimant's right to future benefits arising under the Florida Workers' Compensation Act, it has become standard practice for the employer/carrier also to require the claimant to execute a "general release" of any other employment-related claims which he might have as well.  The effectiveness of this practice has been called into question, however, in a recent case from the Fourth Circuit Court of Appeals.

 

The Family and Medical Leave Act of 1993 (FMLA) allows an employee to take up to 12 weeks of unpaid leave during any 12-month period for, among other things, a "serious health condition."  As the FMLA Blog points out in this post, a federal regulation, 29 C.F.R. s.825.220(d), provdes that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA."  In Taylor v. Progress Energy, Inc., decided on 7/3/2007, the Fourth Circuit Court of Appeals held that this regulation means exactly what it says - it prohibits an employee from waiving his FMLA rights without approval by a court or by the Department of Labor.

 

The Eleventh Circuit Court of Appeals (which covers Florida) has not addressed this question.  But if the Fourth Circuit's reasoning is adopted, then post-accident agreements which purport to release an employee's rights under the FMLA without prior approval will be ineffective.

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